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CAPE TOWN - Today Right2Know (R2K) revealed statistics from MTN, Vodacom, Cell C and Telkom that shows that government accesses thousands if people's sensitive communications using a loophole in the country's surveillance policies.

In May this year, R2K requested that MTN, Telkom, Vodacom and Cell C tell them how many warrants they have received in terms of section 205 of the Criminal Procedures Act, from 2015 - 2017.

The requests by R2K aimed to understand how a legal loophole has allowed surveillance operations to take place using the Criminal Procedures Act, rather than the RICA law.

Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA), is meant to be South Africa's predominant surveillance law.

This law requires law enforcement and intelligence agencies to receive the permission of a specific judge that has been appointed by the president to intercept someones communications.

Strong reasons are needed when applying for this warrant as such interceptions threaten peoples right to privacy.

Policymakers have wrongly assumed that the information about the identity of who have been communicated with, when, and the location is less sensitive than the content of the communication. 

According to the statement by R2K, "This has led to a 'loophole' in our surveillance laws: section 205 of the Criminal Procedures Act allows law enforcement officials to bypass the RICA judge to get access to get your phone records – who you have communicated with, when, and where. According to this law, any magistrate can issue a warrant that forces telecoms companies to give over a customer’s call records and metadata."

"Policymakers are wrong to assume this information is less sensitive or private than the contents of the communication: metadata can reveal as much, if not more, about a person's contacts, interests and habits than what they say over the phone or in a text message. When a person's communications information is handed over using the Criminal Procedures Act, they are never notified, even if the investigation is dropped or if they are found to be innocent," they stated.

In a most recent case, former SAPS Crime Intelligence Officer, Paul Scheepers faced charges in the Western Cape for allegedly using this legal loophole to spy on the communications of various people who were not under legitimate investigation.

However, the four companies acted in accordance to R2K's requests and according to their answers, law enforcement receives call records for a minimum of 70, 960 numbers every year.

These numbers seems to tell a staggering story about surveillance in South Africa.

In 2016, MTN received 23 762 warrants for customers call records, Vodacom received 18, 594 warrants, Cell C got 6, 455 warrants, while Telkom received 1, 271.

"Due to the fact that in some cases, the same warrant will be sent to several service providers, it is not possible to add these numbers together to get the total number of warrants issued across all service providers, as this would result in 'double counting' of some warrants," R2K said.

Most recent statistics from the RICA judge's office, revealed that in 2014/2015, their judge issue 760 warrants for interception.

In the same year at a minimum, magistrates issued 25, 808 warrants in terms of section 205 of the Criminal Procedures Act.

R2K said for the first time these statistics confirm that "the vast majority of 'authorised' surveillance are happening outside of the RICA judge's oversight, with no transparency or accountability."

Before making demands, R2K said its clear that immediate reforms are needed for the country's surveillance policies.

Furthermore R2K stated, "R2K has already pointed out that RICA does not do enough to protect people’s privacy — weak safeguards and a lack of transparency have enabled surveillance abuses."

They demanded that call records be given better protection, an end to mass storage of customers' data, an end to SIM registration, and greater transparency.

"This is no time for half measures and cosmetic reforms," R2K concluded.